Hamdan: Okay, a Pretty Big Deal

by Peter Spiro

Along with Julian, I’m coming around to the position that this is a very big deal, and that it’s likely to have important consequences, short and long-term. But those consequences won’t necessarily happen as a matter of course. The Administration will resist, and in some contexts it may be able to do so successfully.

1) I see now how Marty Lederman’s equation (under which Hamdan spells the end of more extreme interrogation techniques) doesn’t depend on judicial enforcement of common article 3 in other contexts. I’m sure those memos are being written at DoD and OLC. My question here: couldn’t those memos reject Hamdan’s GC holding as applied to other contexts on a theory of presidential primacy in treaty interpretation, except in particular cases that have been judicially resolved? Isn’t it possible that the administration can reject the application of CA3 in other contexts, Hamdan notwithstanding, and do so fairly safely where the probability of a court case is low? I’m not saying this position would be the right one, but that’s hardly going to stop this bunch. In other words, who’s to stop the memos from being written some way, even an implausible way, to cabin Hamdan from spilling over into the interrogation context?

2) The decision clearly casts a darker shadow on the FISA/warrantless surveillance questions, as others are pointing out, but precisely because that question is more likely to end up in court. But is this “our modern Youngstown,” as Steve Vladeck argues here, or as Walter Dellinger writes here, “simply the most important decision on presidential power and the rule of law ever”? I don’t think so. The decision is too rhetorically parsimonious. Other than footnote 23, there’s hardly any exposition on war and separation of powers. The parsimony serves the court’s decision well today – it reduces the risk that the Court will take an institutional hit, by giving opponents less to shoot at.

No mistake about it, this decision took some guts (although given the prevailing negative atmospherics around Guantanamo, less than would otherwise have been the case). Stevens’ rhetorical restraint makes sense in that respect – as in, we’re going to do the brave, right thing here, but we’re going to be as modest as possible in the way we do it. But that will reduce the decision’s staying power. It won’t, in contrast to Youngstown, be a decision for the ages.

3) As for Congress picking up the ball, that looks likely. Two things I didn’t figure into my hunch yesterday to the contrary: a) This administration miscalculates (to put it charitably) whenever it’s given the opportunity. Will someone please explain to me why Bush & Co. think this is so important an element of the anti-terrorism response? After all, it had charged only ten detainees before the commissions. The marginal benefit of looser commission procedures must be quite marginal. Why not just take Hamdan as an excuse to drop a project that has proved such a miserable failure? b) Congress has never really had that much of a problem with Gitmo. Authorization for the commissions would probably be forthcoming with relatively minimal expenditure of political capital on the Administration’s part.

Of course, that fails to consider the international costs of such authorization. If Congress authorizes commissions with the same procedures that the Court found in conflict with CA3 (something Specter’s bill appears to do), the drumbeat from abroad will only get louder. How can the commissions make sense from that perspective, given all the hits we’ve already taken on detainee issues? If you don’t want to give the detainees the dignity of a court martial, set up a commission that in every way tracks court martial procedures. Otherwise this is just way more of a headache than it’s worth.

3 Responses

Thanks, Peter.

Q: “Who’s to stop the memos from being written some way, even an implausible way, to cabin Hamdan from spilling over into the interrogation context?”

A: The professional military, CIA operatives, and the CIA General Counsel. (I’d add Haynes, but . . . ). Now that the prospect of war crimes is in the picture, I can’t imagine them assenting to rely upon such speculative and, frankly, implausible, legal advice. The stakes have been raised considerably.

6.30.2006
at 11:40 am EST Marty Lederman

The focus has certainly shifted to Congress. In fact, the PROCEDURAL defects of the Commission could be cured by use of a General Court-Martial instead of the commission. These courts already have statutory authority to try ANY person who is subject to trial by a military court for violation of the laws of war.

However, neither this, nor congressional action authorizing the use of the current commission, will cure the substantive defect relied on by a plurality of the Court. By rejecting the proposition that “conspiracy to violate the laws of war” stated a valid offense in violation of the laws of war, the plurality concluded that the jurisdictional predicate for use of a military commission – a war crime – had not been satisfied. This predicate is equally applicable to the jurisdiction of a General Court-Martial. Even if Congress authorized the use of the commission, the issue of alleging a valid offense subject to trial by military commission must be resolved.

This may not be a problem for individuals charged with other war crimes. The Court seemed to indicate approval of the charge of “illegal belligerency”, which is an aspect of the charges pending against several other detainees.

Another interesting possibility is that Congress might extend the jurisdiction of military commissions to “terrorism” offenses. The UCMJ already includes one punitive article that subjects a “non-war crime” offense to the jurisdiction of a military commission (Article 106: Spies). But even if such jurisdiction is established, it cannot be applied retroactively.

6.30.2006
at 12:33 pm EST Geoffrey Corn

Yup… But there is something else to consider: there are two more sets of cases right behind this one in the D.C. Cir. — Al Odah (In re Guantanamo Detainee Cases) and Boumedienne (Khalid).

The D.D.C. opinion in Khalid granting the govt’s motion to dismiss on grounds of abstention, etc, just got flushed down the toilet.

Meanwhile, Judge Green’s opinion in In re Gitmo also took a hit, as she ruled that al Qaeda detainees had no protection under Geneva; but that just reinforces her main holding that all of the detainees are protected by the 5th amendment, because the 5th amendment is very much in accord with CA3.

I’m thinking Hamdan might just be the overture and the curtain will go up on the opera next term. The question now is what will the D.C. Cir. do about Al Odah and Boumedienne?

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